Editorial: Please choose the chief justice judiciously, Mr President

Never before has a candidate for chief justice been a household name in quite the same way as Acting Chief Justice Raymond Zondo. Through no fault of his, this has little to do with law and much with politics.

It has contributed to unprecedented public interest in President Cyril Ramaphosa’s pending appointment of a replacement for former chief justice Mogoeng Mogoeng but for the wrong reasons. Zondo has had to unearth the still-fresh skeletons of the ruling party and in return had to suffer abuse that does not belong in a self-respecting democracy. 

There might be a brief respite after the ANC’s national executive committee scolded Tourism Minister Lindiwe Sisulu for saying judges are mentally colonised but it’s unlikely that we have heard the last cynical rant blaming the law for the indignity of world-class inequality that won’t go away.

The judiciary and the Constitution have become whipping boys for populists who failed the country and want to do it for a while longer, with lasting impunity. They may not have lost time following cases such as Daniels v Scribante.

In the matter, the constitutional court widened the application of the Extension of Security of Tenure Act to give a domestic worker the right to make improvements to her dwelling without the permission of the owner, including installing a tap and a ceiling.

The rationale for the ruling was that law “is also about affording occupiers the dignity that eluded most of them throughout the colonial and apartheid regimes”.

It was handed down five years ago. At the time this newspaper carried a (different) article that opened with the words: “The judiciary has found itself in the populist firing line recently.” Much the same could have been written, was in fact written, last week.

Back then the lament went up because the high court had ordered Jacob Zuma to give reasons for the cabinet reshuffle in which he fired Pravin Gordhan as finance minister. The strategy has not changed since he was convicted and jailed; it’s only become more desperate.

As the president braces to fight Sisulu, Mervyn Dirks and their masters for political survival he can do something selfless for the country and take great care when he decides whether to appoint Zondo, or justices Dunstan Mlambo, Mandisa Maya or Mbuyiseli Madlanga as the new head of the judiciary.

All four are competent judges. But more is required. Considerations about who will be able to serve in the position longest should be secondary to who can do so most brilliantly and bravely.

It is simply false that the bench and the legal profession do not reflect deeply about what transformative justice means as they mull the tension between rights in the Constitution. The rulings and articles that prove this are freely available and fascinating to read. 

It’s for Ramaphosa to ensure the judiciary has the space and the leadership to do this. It will be part of his legacy and our lives forever. 

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